On September 30, 2010, the Ninth Circuit ordered the case Brooks v. City of Seattle (08-35526) to be reheard en banc. (order available here).
Malaika Brooks brought a Section 1983 action and state law claims against Sergeant Steven Daman, Officer Juan Ornelas, and Officer Donald Jones (“the Officers”) for use of excessive force when they tased her three times in order to arrest her. The Officers moved for summary judgment based on qualified immunity. The district court denied the Officers’ motion finding that the Officers ‘ conduct amounted to excessive force and declined to find qualified immunity. The Officers appealed.
In March 2010, the original three-judge panel (Circuit Judges Hall, O’Scannlain, and Berzon), reversed the district court (original three-judge panel opinion available here). The majority (Circuit Judges Hall & O’Scannlain) held:
[B]ecause we find the Officers’ use of force reasonable and not excessive under the Fourth Amendment, we reach the issue. Under Washington law, force used by a police officer is not unlawful “[w]henever necessarily used . . . in the performance of a legal duty.” Wash. Rev. Code § 9A.16.020(1). Where the use of force is reasonable, an officer is entitled to state law qualified immunity for assault and battery claims. See McKinney v. City of Tukwila, 13 P.3d 631, 641 (Wash. App. 2000). . .[T]he Officers had probable cause under Washington law to arrest Brooks for obstructing an officer in the exercise of his official duties, did so at the behest of the superior officer on the scene, and acted reasonably and in accordance with the SPD’s Use of Force Training Guideline. Thus, the Officers are entitled to immunity for these state law claims.
Judge Berzon is in violent – yet respectful – disagreement. So she begins her dissent:
Here is what happened to Malaika Brooks, a pregnant mother, as she was driving her son to school one day: Two, soon three, police officers surrounded her. The officers thought she was speeding in a school zone; she says she was not. Brooks provided her identification when asked, so there was no doubt who she was or where to find her. The officers wrote her a ticket but she refused to sign it. Refusing to sign a speeding ticket was at the time a nonarrestable misdemeanor; now, in Washington, it is not even that.1 Brooks had no weapons and had not harmed or threatened to harm a soul. Although she had told the officers she was seven months pregnant, they proceeded to use a Taser on her, not once but three times, causing her to scream with pain and leaving burn marks and permanent scars.
I fail utterly to comprehend how my colleagues are able to conclude that it was objectively reasonable to use any force against Brooks, let alone three activations of a Taser, in response to such a trivial offense. Obviously, the sensible reaction to her refusal to acknowledge the ticket in writing would have been to so note on the ticket and send her on her way. Instead, a traffic offense — assuming it occurred — turned into an encounter that inflicted physical and, in all likelihood, emotional pain on a citizen who was not in any way dangerous to anyone. As “the situation here was far from that of a lone police officer suddenly confronted by a dangerous armed felon threatening immediate violence,” Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001), we should be holding the force used constitutionally excessive. But the majority does the opposite: it sanctions the use of painful force causing permanent scars against a citizen who threatened no harm. I have no choice but respectfully to dissent.
Issues to be addressed en banc include:
(1) Probable cause to place Brooks under custodial arrest;
(2) Objective reasonableness inquiry under Graham v. Connor, 490 U.S. 386, 396 (1989)
(3) Qualified immunity, specifically whether the Officers’ “use of force was premised on a reasonable belief that such force was lawful, or . . . ‘whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001),(quoting Saucier, 533 U.S. at 202).